RSA 331-A:26 · Prohibited Conduct

331-A:26 Prohibited Conduct. – The following acts, conduct or practices are prohibited, and any licensee found guilty after a hearing shall be subject to disciplinary action as provided in RSA 331-A:28:

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I.

Obtaining or attempting to obtain a license by means of fraud, misrepresentation, or concealment.

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II.

Violating any of the provisions of this chapter, or any rules adopted or order issued pursuant to this chapter.

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III.

Being convicted in a court of competent jurisdiction of this or any other state, or federal court, of forgery, embezzlement, obtaining money under false pretenses, bribery, larceny, extortion, conspiracy to defraud, sexual crimes, drug distribution, arson, physical violence, or any similar offense or offenses; provided that, for the purposes of this section being convicted shall include all instances in which a plea of guilty or nolo contendere is the basis for the conviction, and all proceedings in which the sentence has been deferred or suspended.

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IV.

Making, printing, publishing, distributing, or causing, authorizing or knowingly permitting the making, printing, publication or distribution of false statements, descriptions or promises of such character as to reasonably induce any person to act, if the statements, descriptions or promises purport to be made or to be performed by either the licensee or licensee's principal, and the licensee then knew or, by the exercise of reasonable care and inquiry, could have known of the falsity of the statements, descriptions or promises.

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V.

Knowingly committing, or being a party to any material fraud, misrepresentation, concealment, conspiracy, collusion, trick, scheme or device, whereby any other person relies upon the word, representation or conduct of the licensee.

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VI.

Accepting the services of, or continuing in a representative capacity, any salesperson who has not been granted a license, or after the license has been revoked or suspended.

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VII.

Conversion of any money, contract, deed, note, mortgage, abstract or other evidence of title, to the licensee's own use, to the use of the licensee's principal, or of any other person, when delivered to the licensee in trust or on condition, in violation of the trust or before the happening of the condition. Failure to return any money or contract, deed, note, mortgage, abstract or other evidence of title within 30 days after the owner is entitled to and makes demand for such evidence, shall be prima facie evidence of such conversion.

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VIII.

Failing to promptly place trust funds in a proper trust account, or failing to reconcile records monthly.

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IX.

Failing, upon demand, to disclose any information within the licensee's knowledge, or to produce any document, book or record in the licensee's possession for inspection of and copying by the commission or its authorized representatives acting under authority of law.

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X.

In the case of a salesperson or broker, advertising in any manner without stating the name of the individual principal broker when licensed under an individual principal broker license or business name as licensed for whom or under whom the salesperson or broker operates, except as provided in RSA 331-A:16, IV(c).

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XI.

Accepting other than cash or its equivalent as earnest money, unless that fact is communicated in writing to the owner prior to the owner's acceptance of the offer to purchase, and such fact is shown in the earnest money receipt and acknowledged in writing by the owner.

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XII.

Acting for more than one party in a transaction without making full disclosure and obtaining written consent of all parties to the anticipated transaction at the time in which a dual agency relationship occurs, but no later than the preparation of a written offer for sale or lease.

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XIII.

Accepting, taking or charging any undisclosed commission, rebate or direct profit on expenditures made for the principal.

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XIV.

Accepting employment or compensation for comparative market analysis of real property contingent upon reporting a predetermined value.

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XV.

Issuing a comparative market analysis on any real property in which the broker or salesperson has an interest, unless such interest is clearly stated in the competitive market analysis report.

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XVI.

Misrepresentation of membership in any state or national real estate association.

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XVII.

Discrimination against any person in hiring or in sales activity, on the basis of race, color, creed or national origin, or violating any of the provisions of any state or federal antidiscrimination law. A certified copy of the final holding of any court of competent jurisdiction in such matter, or a certified copy of the order issued by any state or federal administrative agency having jurisdiction in such matter, shall be conclusive evidence in any hearing conducted under this chapter.

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XVIII.

Failing to keep for a period of 3 years, records of escrow and trust accounts pertaining to funds entrusted with the principal broker relating to a real estate transaction showing date deposited, date of withdrawal, to whom paid, and such other pertinent information as the commission may require. Such records shall be available to the commission, or its representatives, on demand.

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XIX.

In the case of a principal broker, failing to preserve for 3 years following its consummation, records relating to any real estate transaction.

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XX.

Acceptance by a salesperson or broker of a commission or any valuable consideration for the performance of any acts specified in this chapter, from any person, except the licensed real estate principal broker with whom the salesperson or broker is licensed.

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XXI.

Directing any transaction to a lending institution, escrow company, or title company in a manner prohibited under the Real Estate Settlement Procedures Act of 1974 (RESPA), as amended, 12 U.S.C. section 2601, et seq. A licensee may be engaged by a principal to serve as its agent to solicit extensions of credit or to provide other services related to the purchase or sale of real estate in a manner not prohibited under RESPA, provided that if the services involve an extension of credit or are related to a loan, the agency fee is not paid by the lender.

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XXII.

(a) Failing to disclose:

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(1)

In writing to an owner, the licensee's intention or true position if the licensee directly, or indirectly through a third party, purchases or leases for such licensee, or acquires or intends to acquire any interest in or any option to purchase or lease the property.

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(2)

In writing to a potential buyer or lessee, a licensee's ownership interest, direct or indirect, in property offered for sale or lease by the licensee.

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(b)

Such disclosures shall be made prior to an offer to purchase, sell, or lease, and acknowledged in writing by all parties to the transaction.

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XXIII.

Acting as a salesperson with a licensed broker while not licensed, representing or attempting to represent a broker other than the broker with whom the licensee is affiliated, representing oneself as a salesperson or having a contractual relationship similar to that of salesperson with other than a licensed broker.

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XXIV.

Paying or offering to pay valuable consideration, as defined by the commission, to any person not licensed under this chapter, except that valuable consideration may be shared with a licensed broker of another jurisdiction who is doing business regularly and legally within that broker's own jurisdiction, or shared in accordance with RSA 331-A:16-b. No licensee shall knowingly pay a commission or other valuable consideration to a licensed person knowing that the licensee will in turn pay a portion or all of that which is received to a person who does not hold a valid real estate license. A licensee who has allowed his or her license to expire or who has changed to inactive status or who has transferred to another responsible broker may receive compensation from the previous responsible broker for transactions in which the person participated during the time that the licensee was under the supervision of that responsible broker.

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XXV.

Failing to voluntarily furnish copies of all documents to all parties executing the documents.

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XXVI.

Advertising the availability of real estate or the services of a licensee in a false, misleading or deceptive manner.

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XXVII.

In the case of a principal broker or a licensee who is a branch manager, failing to exercise reasonable supervision over the activities of licensees and any unlicensed staff.

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XXVIII.

Breaching a fiduciary duty owed by a licensee to the principal in a real estate transaction.

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XXIX.

Unprofessional conduct defined in RSA 331-A:2, XV.

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XXX.

Guaranteeing or authorizing any person to guarantee future profits or income which may result from the purchase or resale of the real property.

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XXXI.

Offering real estate for sale or lease without the knowledge and written consent of the owner or owner's authorized agent, or on terms other than those authorized by the owner or owner's authorized agent.

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XXXII.

Inducing any party to a contract of sale or lease to break such contract for the purpose of substituting a new contract with another principal.

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XXXIII.

Representing to any lender, guaranteeing agency or any other interested party, either verbally or through the preparation of false documents, an amount in excess of the true and actual sale price of the real estate or terms differing from those actually agreed upon.

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XXXIV.

Lending a broker's license to any person including a salesperson, or permitting a salesperson to operate as a broker.

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XXXV.

Failure to produce any document, book or record, in the licensee's possession or under the licensee's control, concerning any real estate transaction under investigation by the commission for inspection and copying.

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XXXVI.

Demonstrating untrustworthiness or incompetency to act as a broker or salesperson.

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XXXVII.

Failing to inform the commission in writing within 30 days of being convicted in a court of competent jurisdiction of this or any other state or federal court, of forgery, embezzlement, obtaining money under false pretenses, bribery, larceny, extortion, conspiracy to defraud, or any similar offense or offenses, or an offense or offenses involving sexual crimes, drug distribution, arson, or physical violence; provided that, for the purposes of this paragraph, being convicted shall include all instances in which a plea of guilty or nolo contendere is the basis for the conviction, and all proceedings in which the sentence has been deferred or suspended. This paragraph applies only when the conviction has not first been annulled by a court pursuant to RSA 651:5.

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XXXVIII.

Submitting a property owner's name to any electronic database or multiple listing service that may be accessed by any other person other than the property owner's broker without the express written permission of the property owner. Source. 1993, 348:1. 2000, 311:14-20. 2003, 268:9. 2004, 227:6, 7. 2005, 286:18-20. 2008, 34:9, 10. 2011, 134:4. 2012, 35:2. 2015, 241:1, eff. Sept. 11, 2015. 2019, 49:2, eff. Aug. 4, 2019.

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